Equal Education and the Equal Education Law Centre call for Constitutional Amendment

Thursday, 11 August 2016

In a submission to the Joint Constitutional Review Committee, Equal Education and the Equal Education Law Centre recommend amendments to Section 100 of the Constitution. The aim of the proposed amendments is to remedy gaps which may contribute to failures in the implementation and monitoring of a Section 100 intervention, the likes of which have tragically manifested in the case of the Eastern Cape.

Section 100 of the Constitution may be used by national government, as an extreme measure, to take over the functions of provincial government when service delivery has broken down, and to restore the province to a basic level of functioning.

It has been five years since the Eastern Cape Department of Education (ECDoE) was placed under a Section 100 intervention, but there has been little improvement.

EE and EELC contend that accountability and effectiveness in an intervention of this nature can be improved, and learners’ rights better protected, if Section 100 is amended to require more stringent parliamentary oversight and the enactment of legislation that will clearly and carefully regulate the intervention process.

The Eastern Cape Education Crisis Continues

In March 2011, national government made the decision to intervene in the ECDoE. Education in the province was in crisis: the provincial department had earlier that year been projected to overspend by nearly R2 billion. As a result, essential services, like scholar transport and school nutrition programmes, had been halted. Over 4 000 temporary teachers had their employment terminated, many schools had not received textbooks, and corruption was widespread.

The Intervention

Section 100 of the Constitution empowers the National Executive to intervene in a province, when that province fails to meet its obligations in terms of the Constitution or other legislation. Under Section 100(1)(b), the national government takes over direct responsibility for doing the province’s job.

The Eastern Cape intervention should have strengthened the province so that it could be empowered to do its job properly. But education in the Eastern Cape is still in crisis, and little is known of the status or effectiveness of the intervention today.

While the Intervention did manage to resume scholar transport and school nutrition programmes, there are still widespread teacher shortages, appalling infrastructure conditions, learners in need not receiving transport and non-delivery of textbooks. Further, the ECDoE itself is still extremely weak. There are vacancies in important technical and leadership positions, corruption, weak lines of accountability, and an inability to plan and spend funding effectively.

Currently, the public has little idea what the Intervention has achieved. Many departmental officials have claimed that it has been downgraded to a monitoring and support role, but Basic Education Minister Angie Motshekga recently confirmed that it was in fact still in force –without specifying any further details.

The NCOP has a special responsibility for oversight of Section 100 interventions. In terms of Section 100(2) of the Constitution, it must approve or disapprove an intervention, and, while an intervention runs, review it regularly and make any appropriate recommendations to the national government. In the case of the Eastern Cape intervention, this oversight role fell to the NCOP’s Select Committee on Education and Recreation.

However, the Select Committee has failed in this Constitutional mandate. It has not reviewed the intervention for almost three years. The NCOP’s review is an important mechanism through which the government can be held to account for its actions, and offers an important source of information about the intervention to the public.

In light of the NCOP’s failure, EE and the EELC urged the Select Committee on Education and Recreation to exercise its role of oversight, reviewing the Eastern Cape intervention regularly in order to find out its current status and achievements. Further, we recommended that the Select Committee use its position to recommend to the National Executive that it publicly renews the intervention and focuses on strengthening the ECDoE itself, empowering it to do its job better.

EE and the EELC have written to NCOP chairwoman Thandi Modise, requesting a meeting to discuss the NCOP’s oversight of the Section 100(1)(B) intervention in the Eastern Cape.

Given the magnitude and urgency of the issue, EE and the EELC expect a response from the Select Committee, and from Ms Modise, with the reopening of Parliament.